230 P. 256 | Okla. | 1924
This action grows out of an accident that occurred on the 17th day of January, 1920, in the city of McAlester and resulted in the plaintiff, Clara F. Palmer, receiving an injury or several injuries by being struck by a street car belonging to the defendant, Pittsburg County Railway Company. The accident occurred *67 on North Main street, which runs from the business part of McAlester up to and into the old town of North McAlester. The plaintiff, Clara F. Palmer, was riding horseback going from old McAlester to McAlester along Main street, and the defendant street car company track runs along the center of said Main street between the two towns. There is a spur of the Missouri, Kansas Texas Railway that branches off and runs to Krebs and other mining towns east of McAlester, and on this particular day when the plaintiff, Clara F. Palmer, reached this spur of the Missouri, Kansas Texas Railway, the street car had stopped north of the spur and was taking on passengers, when the plaintiff passed it on her horse. About the time that she was passing the street car her horse which had always been a very gentle and tractable horse took fright at an engine on the Missouri, Kansas Texas Railway tracks, and which was popping off steam. She commenced trying to control her horse, but he ran on across the spur of the Missouri, Kansas Texas Railway and appeared to get more and more frightened all the time the street car got over the crossing. Roy Griffin, the motorman on the street car, says that Mrs. Palmer was 85 or 90 feet ahead of the street car after he got across the tracks, her horse was rearing and plunging and kicking and finally commenced backing, and she was unable to control him or get him to go forward on the road. The street car was running from 10 to 12 miles an hour coming up behind her. The horse backed on to the track and was struck by the street car, which knocked the horse down and threw Mrs. Palmer off in the road, and the street car passed over the body of the horse for 4 or 5 feet before it was stopped and had to back off of the horse before they could get the door open. The motorman, as soon as he could get his car stopped and get off, went to Mrs. Palmer, and as she says told her that he never saw her until he struck her. Mrs. Palmer was taken home, and it was found that she had a number of bruises, abrasions, and cuts on her body, and that her knees were both injured, one of them sprained, and she was confined to her bed for considerable time, and was not able to pursue' her calling as a physician for some months afterwards. Suit was brought against the street car company by Mrs. Palmer to recover damages for the injuries sustained by her, and was tried in the district court of Pittsburg county, and resulted in a verdict in favor of Mrs. Palmer for $1,000.
The principal contention of the plaintiff in error is, that the court refused to properly instruct the jury on contributory negligence and the doctrine of the last clear chance. Counsel for plaintiff in error requested something like 10 or 15 special instructions, some of which were given and others modified and given, and some refused, and counsel excepted to practically all of the courts general instructions, and it is on these instructions largely that this case turns. We have read all of the requested instructions by plaintiff in error and read the entire charge of the court, and we are of the opinion that the general charge of the court fairly presented the law of the case to the jury. The difference between counsel and the court seems to have been on the question of contributory negligence and the doctrine of the last clear chance. We are of the opinion that counsel for plaintiff in error placed too much stress on the alleged contributory negligence of the plaintiff and on the doctrine of the last clear chance. We are of the opinion that it takes a considerable stretch of the definition of contributory negligence and of the doctrine of the last clear chance to get either one of them in to this case, but we are not inclined to blame counsel for plaintiff in error, because that was the only defense that he had, and he had to make the most of it. It is hard to understand how the facts that the plaintiff's horse became frightened and was rearing and plunging absolutely uncontrollable by Mrs. Palmer for a distance of something like 100 feet in plain view of the motorman in the car and that he run his car along until he ran it against the horse and knocked it down and knocked the plaintiff off in the road and ran the street car upon the horse 4 or 5 feet before he could stop it. Just how there could be any contributory negligence on the part of the plaintiff is hard to understand. There is no controversy in the testimony but that the horse had got beyond her control, and the motorman could see plainly that she was not able to control it, and it was backing right towards the car, and he kept the car running instead of stopping it until she could quiet her horse, and ran up against the horse and knocked it down and injured Mrs. Palmer. As we said before it is hard to get contributory negligence or the last clear chance in the case, and it is on the requested instructions that counsel for plaintiff in error ask and those that the court gave on these two questions that the complaint in the instructions is directed. We are of the opinion that the case was fairly tried, and that the instructions given by the court fairly presented the law of the case to the jury, and the verdict reached by the jury is not excessive. *68
We have read the authorities incorporated in the brief of counsel for plaintiff in error, and also those in the brief of the defendant in error that are cases arising in similar accidents to the instant case, and we deem it unnecessary to cite them. Most of them are cases on contributory negligence, and the cases involving the doctrine of the last clear chance, and we do not think either of these questions are of sufficient importance in this case to require the citation of authorities. On the whole case, we think the judgment of the trial court should be affirmed, and so recommend.
By the Court: it is so ordered